The current dramatic interaction between the Government, Parliament and the courts means that we are witnessing one of those formative moments in the evolution of our constitution of which there have been many over the course of centuries. The attention that is paid to the checks and balances of the US written constitution has tended to overshadow the fact that a much more interesting confusion and separation of powers has been at the heart of the dynamic development of our unwritten constitution.

In the present struggle, the sovereignty of Parliament has been invoked. Monarchical ambitions have been detected in the executive. The spectre of the politicising of the courts has been raised. It may be helpful to re-state as calmly as possible the underlying and enduring structure. You do not have to be Edmund Burke to believe that it is a remarkable achievement of subliminal collective intelligence over the course of fifteen centuries.

The sovereignty of Parliament merely expresses the legal fact that Acts of Parliament override the common-law, and hence are in that sense supreme, subject now to the effect of EU law within UK law. The powers of Parliament are themselves legal powers which the courts respect and assert and protect. The Bill of Rights of 1689 says that ‘the freedom of speech, and debates or proceedings in parliament, ought not to be impeached or questioned in any court or place outside of parliament’.

There is no particular magic in the term ‘prerogative power’. The few remaining prerogative powers are common-law powers in the sense that they are not conferred by statute, and in the sense that they are powers whose existence and conditions of application are matters to be determined by the courts. They are also common-law powers in the sense that they may be abolished, abridged, supplemented or temporarily superseded by statute.

The whole of our sophisticated system of public law consists in the review by the courts of decisions made by all levels of the executive branch of government in the exercise of legal powers. Of course, the decisions will often have been made on political grounds, but it is the job of the courts to determine the limits of the powers, given that their exercise abridges the legal rights and freedoms of particular citizens, and in some cases the legal rights and freedoms of all citizens.

All of these things are simply manifestations of the principle of the Rule of Law. It took centuries of struggle to establish the Rule of Law as the ultimate principle of our constitution, so that it could become an ultimate principle of liberal democracies across the world.

Philip Allott is Professor Emeritus of International Public Law at Cambridge University.

A central theme of the High Court judgment in Miller v Prime Minister is that there is ‘no legal measure by which the court could form a proper judgment on’ the matter of whether prorogation was excessive to prepare for the Queen’s Speech (at [56]). It was also said to be ‘impossible for the court to assess by any measurable standard how much time is required “to hold the Government to account”’ (at [57]). Is that accurate?

Arguably the proper approach to this question was set out in R (UNISON) v Lord Chancellor. There it was held that an Employment Tribunal fees order was ultra vires, taking into account the effect of fees in deterring claimants from accessing a public system of justice, a fact which itself affected the rule of law. According to Lord Reed, ‘the degree of intrusion [on access to justice] must not be greater than is justified by the objectives which the measure is intended to serve’ (at [88]). This principle was one of common law, but also ‘an analogy’ to the principle of proportionality. International law, in this case the case law of the European Court of Human Rights, was ‘revelant to the development of the common law’ (at [89]).

This suggests that the proper ‘legal measure’ flows from the government’s own objectives. So, in the case of prorogation of Parliament, does the prorogation intrude no more upon a constitutional principle than is justified by the objectives which it is intended to serve? Here it is plain that the relevant constitutional principle is Parliamentary sovereignty, ‘a fundamental principle of the UK constitution’ (R (Miller) v Secretary of State for Exiting the EU, [43]). It also affects the right to ‘take part in the conduct of public affairs, directly or through freely chosen representatives’ found in the International Covenant on Civil and Political Rights 1966 article 25(a).

It follows that the established approach since UNISON is probably to ask:

What is the government’s aim in proroguing Parliament? If that aim is legitimate, then ask…

Is the government’s progrogation appropriate to achieve the aim?

Does the government’s prorogation go further than is necessary to achieve the aim?

Does the government’s prorogation strike a reasonable balance between its interests and society’s as a whole?

At each of these steps there is room for debate. It is first debated whether the government’s aim is in fact to prepare for the Queen’s speech, or whether its true motive is to frustrate the attempt of Parliament to block the government’s option of a ‘no deal’ Brexit. As the Queen in Parliament is ‘the great corporation or body politic of the kingdom’ (William Blackstone, Commentaries on the Laws of England (1765) a useful analogy in another kind of corporate law is found in Howard Smith Ltd v Ampol Petroleum Ltd. This held that company directors issued shares for the improper purpose of blocking a takeover bid, despite their claim that they aimed to finance the completion of tankers (approved in Eclairs Group Ltd v JKX Oil & Gas plc, [23] per Lord Sumption, the ‘leading modern case’). What is the true aim is an evidential question. Cherry v Advocate General, [53]-[58] has held that the true aim of prorogation is to ‘stymie’ Parliamentary scrutiny.

If, however, it is accepted that there is a legitimate aim, the court should then ask whether action taken is appropriate, necessary and reasonable. Here the clinching factor is likely to be ‘necessity’. Despite the High Court’s opinion that there is no ‘legal measure’, it would appear that the measure is precisely the government’s stated aim. It would seem not to be beyond the capacity of the court to determine whether time to prorogue Parliament is excessive or not, taking into account past practice. In this, it is up to the government to show that the ‘degree of intrusion [is] not be greater than is justified by the objectives which the measure is intended to serve’.

This is all the more important because the Bill of Rights 1689 article 1 states that ‘the pretended Power of Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parlyament is illegall.’ It is an inherent part of logic, including in law, that reasoning ‘from the lesser to the greater’ (a minori ad maius) what is illegal in a minor way, must also be illegal when done in a major way. If a government purports not merely to suspend laws or their execution, but suspends the entire lawmaking body of Parliament, there must be good justifications. In this way, it is not clear why prorogation of Parliament should be considered a matter of ‘politics’ as ostensibly distinct from law.

Ewan McGaughey, Senior Lecturer, School of Law, King’s College, London

Constitutional lawyers often point to key cases as milestones in public law. Recently, the Supreme Court decision in Privacy International joined the ranks of leading public law cases, adding to the cases discussing ouster clauses and the extent to which courts can review decisions of inferior courts and tribunals in Anisminic and Cart. As Privacy International also demonstrated, milestone cases often take on a life of their own. The judges in Anisminic may be surprised at how the case was later interpreted. But this is how the common law works. Anisminic was interpreted in a series of later cases to demonstrate that all legal errors are jurisdictional errors. This then became part of the common law.

CCSU (or the GCHQ case) has long been regarded as a milestone case regarding judicial control over prerogative powers. In R (Miller) v Prime Minister, (Miller 2) the High Court interpreted CCSU as marking a sea change in how we review prerogative powers. Courts no longer look at the source of a power but its subject matter when determining whether it can be subject to judicial review. Post CCSU it was no longer the case that prerogative powers could not be reviewed because their source was the common law as opposed to legislation. Rather, courts look to see if the subject matter of that prerogative power is justiciable. Is it suited to judicial control by the court?

This blog post will make two arguments. First, it will argue that the High Court’s reading of CCSU in Miller does not provide the full story. As such, it fails to provide an accurate account of when prerogative powers are justiciable. Second, it will argue that, given the current constitutional circumstances, there are strong constitutional reasons for the Supreme Court to build on CCSU and recent case law developments which recognise the principle of legality as a constitutional principle and not just a principle of interpretation. As such, it, or a sister principle, can and should also apply to prerogative powers. The seeds of this form of control were already planted in R (Miller) v Secretary of State for Exiting the European Union (Miller 1), which confirmed that the common law restricts the scope of broad prerogative powers in a similar manner to the principle of legality.

Justiciability

To read CCSU as merely exchanging source for subject matter does not tell the full story. There are many nuances to the judicial approach to controls over prerogative powers. First, it fails to distinguish between controls over whether a purported prerogative power exists, and judicial review over the exercise of a prerogative power. As Miller 1 recognises, controls over whether a prerogative power exists are not confined to an historical analysis. The common law and legislation restrict the scope of prerogative powers. In Miller 1, the Case of Proclamations, combined with the Bill of Rights 1688/9 and the Claim of Rights 1689 in Scotland, provided authority that prerogative powers could not be used to change domestic law. The Supreme Court drew on Laker Airways and Fire Brigades Union to conclude that prerogative powers cannot be used to frustrate the will of Parliament as expressed in legislation, either by frustrating specific statutory provisions or by rendering it devoid of purpose. Whilst these look like cases concerned with the exercise of prerogative powers – because we refer to them as restricting the use of these powers – they are better understood as controls over the existence or scope of prerogative powers. The Supreme Court in Miller 1 did not ask whether the prerogative power of withdrawing from a Treaty was justiciable, despite the clear argument that it was a non-justiciable matter of high policy – the merits of Treaty withdrawal are a matter of politics, not law. Rather, the Supreme Court considered the matter differently. It limited the scope of the prerogative power of entering into and withdrawing from Treaties so as not to include a specific power to unilaterally withdraw from a Treaty where to do so would modify domestic law or frustrate legislation.

Second, as the High Court recognises in Miller 2, the law has moved on from CCSU. Lord Roskill’s list of non-justiciable prerogative powers has modified over time, with the court recognising that prerogative powers that previously looked to be too political could be subject to legal controls. Lord Roskill’s judgment is not the only judgment in CCSU. The other judgments provide further justifications for the ability of the courts to review prerogative powers. There is a clear role of the court to review those prerogative powers that harm individual rights. We can see this not just as a concern for protecting human rights, but also a broader concern for legitimacy. Moreover, there are suggestions in CCSU and later cases that prerogative powers are justiciable when there are legal standards by which their use can be assessed – as accepted by Lord Drummond Young in Cherry v The Advocate General (at [102]).

This is not, as the High Court in Miller 2 suggested, to stand justiciability on its head, forgetting that ‘the question of justiciability comes first, both as a matter of logic and of law’. (at [41]). Justiciability can still come first. As Lord Pannick argued, greater caution is exercised over those prerogative powers that are more political. In other words, subject matter can be used as a prima facie indication of justiciability. If a prerogative power is an exercise of high policy, for example, it would suggest either that it can be reviewed on fewer grounds of judicial review, or that the court scrutinises the use of this prerogative in a less stringent manner. Subject matter is still important, even if courts focus on an examination of possible legal grounds of review to determine justiciability. More ‘political’ prerogative powers could, for example, only be unlawful if they breached the rule of law, or failed to follow clear principles of natural justice, rather than being struck down as irrational. Moreover, such ‘political’ prerogative powers might only be unlawful where the use of the prerogative was so absurd that there were no possible rational justification for its exercise.

All of these elements were arguably accepted by the Inner House in Cherry. Lord Carloway concluded that control over the prorogative power of prorogation was justiciable when the prerogative undermines or attempts to undermine a ‘central pillar’ of the constitution – ‘the central pillar of the good governance principle’ (at [50]). Lord Brodie accepted that, whilst it was not for the court to determine the length of prorogation, nevertheless the control of the prerogative was justiciable as the use of the prorogative in this case was ‘so blatantly designed to frustrate the will of Parliament at a critical juncture in the history of the UK’ (at [91]).

Furthermore, as the High Court itself accepts in Miller 2, when it comes to determining justiciability ‘the essential characteristic of a “political” issue is the absence of judicial or legal standards by which to assess the legality of the Executive’s decision or action’ (at [47]). This too appears to merge subject matter and the nature of the challenge when determining justiciability.

Principle of legality

I argued above that Miller 1 concerned the scope of prerogative powers. Whilst the Government enjoyed a broad prerogative power to enter into and withdraw from Treaties, this did not include a specific power to withdraw from the EU Treaties because the consequences of doing so would mean that the prerogative would frustrate legislation and modify domestic law, removing individual rights. When expressed in this manner, the reading down of a broad prerogative power is parallel to the way in which courts use the principle of legality to read down broad statutory provisions to protect fundamental rights. In UNISON, for example, the statutory power granted to the Lord Chancellor to set court fees did not extend to include a power to set fees for employment tribunals that undermined access to justice by making it practically impossible for many who used employment tribunals to afford the fees. If, as CCSU suggests, there is a move from source to subject matter, then it is also possible to argue that a principle similar to the principle of legality applies to prerogative powers. Both are executive powers that should be subject to analogous judicial controls, despite having a different source.

The obvious objection to the above argument is that the principle of legality is a principle of statutory interpretation. Yet, when dealing with most prerogative powers – and particularly the prerogative power of prorogation – there are no statutes to interpret. So how can it apply to prerogative powers? There are two main arguments in response to this objection.

First, the principle of legality is not just a principle of statutory interpretation. It is also a constitutional principle establishing the limits of executive power. As Lord Hoffmann recognises in Simms, its application means that the UK courts, whilst accepting parliamentary sovereignty ‘apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document’ (at [131]. See also the argument of Fordham QC, at [31] of Miller 2). Moreover, later case law recognises sister principles to the principle of legality, applied to the interpretation of Henry VIII clauses in Ingenious Media and the interpretation of ouster clauses in Privacy International. In addition, if the principle of legality were just a principle of statutory interpretation, we would expect to see the courts looking for evidence that the legislature was aware of the fundamental principles of common law it was presumed not to legislate against. But this is not the case. Rather, courts determine the content of fundamental principles of the common law. When the intention of Parliament is used by the courts, it is as evidence of an express intention to limit a common law right, or to demonstrate that a fundamental right has been established through legislation and so may not be fully regarded as a fundamental common law right.

The courts adopt a contextual approach to the principle of legality, influenced by the importance of the fundamental common law right or constitutional principle at stake. In particular, the court is more likely to read down provisions of legislation which restrict individual liberty or which undermine a structural aspect of the constitution designed to protect rights, such as access to the courts. Moreover, courts are more likely to read down legislative provisions when determining the scope of powers granted to executive bodies. The principle of legality’s status as a constitutional principle is reinforced by the way in which the courts will allow express words in legislation to empower the executive to restrict fundamental common law rights, but only to the extent that this any restriction on fundamental rights is as narrow as possible, almost akin to an application of the principle of proportionality (see UNISON).

Second, CCSU demonstrates the ability of the courts to draw on fundamental common law principles to control actions of the executive. If judicial review is no longer restricted to the review of powers granted to the executive by legislation, then this means that courts must be able to assert their own controls over executive power, drawing on principles of the common law. This is true regardless of whether we see this as an inherent common law power of the courts, or because we presume the legislature has delegated this function to the courts. Whilst the wording of legislation may place limits on the extent to which the court can use the common law to restrict executive powers, it is no longer the case that only the legislature can place limits on the powers of the executive. As such, a principle akin to the principle of legality could and should apply to prerogative powers. Indeed, this is tacitly recognised by Lord Carloway in Cherry, where he argues that the control of the court over the use of the prerogative power to stymie the will of Parliament ‘follows from the application of the common law, informed by applying “the principles of democracy and the rule of law”’ (at [51]), citing Moohan v Lord Advocate.

In Miller 1 the court drew on earlier case law to explain how the common law restricts the scope of broad prerogative powers. The time is right for the Supreme Court to build on these earlier cases, recognising a further sister principle to the principle of legality, restricting the scope of all prerogative powers so that they do not extend to undermining fundamental constitutional principles – including democracy and the separation of powers. To do so is not to interfere with a political decision as to the timing or length of prorogation. Rather, it is to accept that a broad prerogative power does not extend to include the use of that prerogative to undermine fundamental principles of the constitution. Political choices are bound by legal limits. The courts are both constitutionally and institutionally suited to determine the limits of the law.

I would like to thank Paul Craig and Hayley J. Hooper for their excellent comments on earlier drafts.

Alison L. Young, Sir David Williams Chair of Public Law, University of Cambridge

The brilliant accident of our form of constitutionalism is not just that the executive came to be accountable to an assembly. It is that the assembly came to be responsible for the executive –for its membership, its policy, its operation, everything. Prorogation, in particular, concerns the operation of the proceedings of Parliament, and it is the representatives of the people (and the people themselves in an election) who ought to have, and to exercise, responsibility for holding the Prime Minister to account for misconduct in proroguing. If the judges were to accept the novel claims in Petition of Cherry and other/s [2019] CSIH __ and R (Miller) v Prime Minister No 2 [2019] EWHC 2381 (QB), and forbid the Prime Minister to stymie Parliament with a prorogation, they would disrupt that responsibility.

And the present political crisis is no time to be changing the constitution. It would be better for the courts to adhere, in spite of the worst of political machinations, to a structure that is more sustainable and robust than people tend to remember. This is no time to panic, and judicialize the operations of Parliament.

Are these claims really novel?

The decision of the Inner House in Cherry on 10 September 2019 was the first in UK history to hold that stymieing Parliament by a prorogation is against the law. And in the days before the Fixed Term Parliaments Act, it was never held to be unlawful for the government to stymie Parliament by a dissolution. But the claimants in the Cherry case and Miller No 2 (‘the claims’) rely on the most orthodox propositions of administrative and constitutional law (‘ordinary public law principles’, as the claimants put it in Miller No 2 [23]): that executive power cannot lawfully be used for improper purposes, and that Parliament is sovereign. The two arguments connect, of course: it is because of the sovereignty of Parliament, according to the claimants, that it is improper –and therefore unlawful– to stymie Parliament.

There is a strong allure in these arguments for judicial action against abuse of power. But I will argue that they only misapply the principles that demand judicial interference in the great improper purposes cases such as R v Foreign Secretary, ex p World Development Movement [1995] 1 WLR 386 and Padfield v Minister of Agriculture [1968] AC 997. To Professor Paul Craig and to others, it seems deeply unattractive to say that an abuse of power should not be subject to judicial control. But it is no accident that there is no legal authority for judicial review of the prerogative to prorogue, and there is a cogent reason of constitutional principle for the judges not to invent that form of supervision of proceedings in Parliament.

The Inner House in Cherry held that the judges must prevent the Prime Minister from using prorogation to stymie Parliament. The English Divisional Court (like Lord Doherty in the Outer House of the Court of Session) held that the judges cannot do so: ‘that is not territory in which a court can enter with judicial review.’ [55] Suppose, as Nicola Sturgeon put it, that ‘The prime minister’s behaviour has been outrageous and reckless, and has shown a complete disregard for constitutional rules and norms.’ Or that, as Lord Brodie put it in the Inner House in Cherry, it was ‘…an egregious case of a clear failure to comply with generally accepted standards of behaviour of public authorities’. Then what the Prime Minister has done is worse than many unlawful uses of executive power. You see the attraction –we can all feel it– in thinking that the judges must be prepared to step in.

But ‘executive power’ is not a thing that is subject to uniform judicial supervision. Lord Doherty at first instance in the Outer House in Cherry got the most important point on the table when he said that the judges’ role depends on the type of executive power: ‘The court’s role in relation to prerogative powers is dependent on the nature and the subject matter of the power or its exercise’ [13]. That dependency is at the heart of this case.

In Miller No 2, the claimant’s counsel, Lord Pannick, offered an account of the dependency: the courts have reason to be more or less cautious (and sometimes very cautious) in concluding that a power has been exercised for improper purposes [27], [37]. The Divisional Court held, instead, that ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable in Her Majesty’s courts’ [68] (cf ‘the decision of the Prime Minister was not justiciable.’ [1]). And Lord Doherty ruled in the Outer House that ‘the claim is non-justiciable’ [13].

Justiciability and non-justiciability in administrative law are, primarily, properties of issues or questions, rather than of exercises of power, or of claims. In GCHQ [1985] AC 374, for example, the judges decided that they could not answer the question of whether there would be a serious risk to national security if the Prime Minister consulted the applicant Union. The Union lost because in order to decide in the Union’s favour, the judges would have needed to answer that non-justiciable question.

The ‘non-justiciability’ here is a different matter: it is a property of the decision to prorogue, according to the Divisional Court in Miller No 2 [1], [68]. Lord Doherty treated it as a property of the claim [26], [27]. It may be the case that non-justiciable political questions would need to be answered in order for the judges to say whether the Prime Minister’s purposes were proper. The judges of the Divisional Court in Miller No 2 certainly considered that such questions arose in the case; this would have been enough to justify their decision to reject the claim (as in GCHQ). But they held something stronger: that ‘The question of justiciability comes first, both as a matter of logic and of law.’ That is, it seems that they would not be prepared to pass judgment on the propriety of the Prime Minister’s purposes, regardless of the facts. Imagine that an alleged improper purpose involved no political question that judges cannot appropriately answer. There would still be no judicial review, on the Divisional Court’s approach. It is not just that the judges should be very cautious; they should not even ask, for the purpose of a challenge to the lawfulness of a prorogation, whether the Prime Minister’s purposes were proper.

That result –which seems intolerable to some lawyers, and to the claimants– is, with respect, exactly right. In the great cases on improper purposes in administrative law, Lord Pannick’s approach is a sound approach to the dependency of judicial review on the nature of the case: the judges should be more or less cautious, in answering questions that are less or more ill-suited to judicial decision. But in those cases, the power in question (to initiate a statutory inquiry; to spend overseas development money…) is not the Prime Minister’s power to regulate a Parliament that is responsible for his tenure in office, to which he is accountable, and on which he is utterly dependent. The dependency of the judicial role on the nature of the power is more radical than Lord Pannick’s argument suggests. It is a matter of constitutional principle that the House of Commons should have responsibility for responding to wrongdoing in the exercise of the Prime Minister’s power over its own proceedings.

The Divisional Court’s term, ‘non-justiciable’, needs disambiguating; lawyers use it both when it is more or less unsatisfactory for judges to base a decision on their own answer to some question, and also when it is unsatisfactory for judges to hear a claim, or to interfere with a decision. The Divisional Court’s reasoning in Miller No 2 is justified; the justification could alternatively be expressed accurately without using the word ‘justiciability’. It could be expressed by saying that the common law does not regulate the scheduling of parliament proceedings. As a result, the case that the prorogation was unlawful lacks its very first premise.

It would be an inauthentic contribution to democratic politics, if judges gave the Prime Minister their seal of approval for his truthfulness and for his purposes in a prorogation. Likewise, if they inflicted on the government their adverse take on this political move. It is not merely that the judges would have difficulty answering the questions at stake; it would be inauthentic because while any of us can pass judgment on a Prime Minister’s truthfulness and his purposes, the judges would be giving the binding authority of their court to their own answers to these questions of parliamentary politics. This form of ‘non-justiciability’ –as the Divisional Court called it– arises because the judges’ supervision would diminish Parliament’s responsibility for its own operation.

Extreme prorogation

Here is one potentially good argument for judicial interference: that it might be necessary in the interests of constitutional governance, where the Prime Minister is able to prevent the House of Commons from exercising the very form of control that, I have said, it ought to exercise. The argument is, as Jake Rowbottom has put it, that:

‘the matter cannot simply be left to the ordinary political channels to express opposition to the measure, as those ordinary channels are being closed down for a temporary (yet crucial) period.’

That is not this case. Parliament was not stymied by the prorogation; it was energised. It legislated in three days to require the Prime Minister –against his headline policy– to seek an Art 50 extension. The House of Commons could have thrown his government out. It could have done so after the legislation was passed. The House could have agreed to either of the Prime Minister’s proposals for an early general election. There is no need, in Miller No 2, for the judges to step in where the House of Commons cannot respond to the Prime Minister’s conduct.

Now what if we imagine the worst: a prorogation sine die (perhaps to avoid a vote of no confidence). Do we need the courts to protect us from that? The government would run into the buffers of its own need, in the 21st century, for frequent parliamentary sessions, and eventually the Fixed Term Parliaments Act would require a general election. But it would never come to that; ordinary day-to-day politics prevents prorogation sine die. No Prime Minister could hold together a party while doing that. There isn’t actually a need for judges to be on standby to fill in for a House of Commons that is prevented from discharging its own responsibility.

Conclusion

The House of Commons does not need the courts to take over its responsibility for holding the Prime Minister to account for scheduling sessions. The courts and the politicians should adhere to the principle that the representatives of the people are exclusively responsible for the operation of Parliament, subject to their accountability to the voters in a general election. That would be better than diminishing their political responsibility through judicial supervision of Parliament’s proceedings.

In fact, I cannot see that this is the time for constitutional innovations, of any kind, at all. I am not saying ‘Don’t worry’. On the contrary, I think the situation is so grim, that we cannot afford to panic.

Timothy Endicott, Professor of Legal Philosophy, University of Oxford and Fellow in Law, Balliol College

In R (Miller) and Others v The Prime Minister (hereinafter Miller No.2), the High Court of England and Wales found that the decision of the Prime Minister to advise the Queen to prorogue parliament was non-justiciable. In doing so, the judgment reveals the propensity of the judiciary to be much more protective of its own empire than that of the legislature. Ultimately, however, it is an approach that undermines both due to the creation of a legal black hole.

Legal holes and Miller No.2

Legal black holes are zones formally created by law within which, no recourse to the law can be made. A legal black hole is thus created when there is no legal control on the body exercising the power in question, leaving the decision-maker free to exercise their absolute discretion. At best, all the judiciary can ask is whether the legal black hole was validly created. There is therefore a close link between legal black holes and non-justiciable or political questions. Legal black holes should be distinguished from what David Dyzenhaus refers to as legal grey holes—questions of law which courts state that they do have the capacity to review; however, the review exercised is so light touch that it is essentially meaningless. Dyzenhaus contends that legal grey holes are more dangerous than legal black holes as the former cloak the decision with a thin veil of legality, thus legitimising them in a way that a finding of non-justiciability does not.

In Miller No. 2 the approach of the Court is to essentially create a legal black hole regarding the exercise of the prerogative power to prorogue Parliament. The Court found (at [51]) that:

The Prime Minister’s decision that Parliament should be prorogued at the time and for the duration chosen and the advice given to Her Majesty to do so in the present case were political. They were inherently political in nature and there are no legal standards against which to judge their legitimacy.

Ostensibly, this appears to be an exercise in judicial restraint albeit one that creates a legal black hole. What Miller No. 2 shows, however, is how a finding of non-justiciability can, nevertheless, legitimise a decision. Even such a thin conception of the rule of law such as that deployed to create a legal black hole can add a degree of legitimacy to a decision. This thin veil of legitimacy, however, is further compounded when the court accompanies its finding of non-justiciability with an implicit endorsement of the reasons given by the decision-maker. This is essentially what the Court does in Miller No. 2 (at [51]):

The evidence shows that a number of considerations were taken into account. We have summarised them extensively already. They included the need to prepare the Government’s legislative programme for the Queen’s Speech, that Parliament would still have sufficient time before 31 October 2019 to debate Brexit and to scrutinise the Government’s conduct of the European Union withdrawal negotiations, that a number of days falling within the period of prorogation would ordinarily be recess for party conferences, and that the current parliamentary session had been longer than for the previous 40 years…

Miller No. 2 is thus an example of the negative effects of a legal black hole and a legal grey hole. If the risks of a legal black hole are to be mitigated, their inherent illegitimacy must be acknowledged. Courts must therefore refuse to look at the decision-maker’s reasoning out of risk of endorsing this reasoning— explicitly or otherwise. For this reason, the courts were correct (at [41]) to reject Lord Pannick’s submission that the court should:

…explore the facts first, for the purpose of deciding whether there has been a public law error, and then turn to justiciability; and then in the limited sense of deciding whether “caution” should forestall intervention.

Lord Pannick’s suggestion would have the benefit of gaining some sort of judicial disapproval in a case which was ultimately lost on the justiciability question; however, the opposite occurs in the instant case where no error has been identified.

The consequences of legal black holes

It may be that the Court implicitly acknowledged the Government’s case regarding the purpose of prorogation in order to reassure itself of the ramifications of its judgment. This too can be seen by the Court (at [66]) downplaying hypothetical arguments pertaining to the consequences of a finding of non-justiciability:

We do not believe that it is helpful to consider the arguments by reference to extreme hypothetical examples, not least because it is impossible to predict how the flexible constitutional arrangements of the United Kingdom and Parliament itself, would react in such circumstances.

The difficulty with this argument, however, is that the doctrine of non-justiciability necessitates extreme hypotheticals due to its ‘all or nothing’ quality. If a five week prorogation is non-justiciable, then so too is a five month prorogation or longer. The question is non-justiciable in all instances, not just on the facts presented before the court. Indeed, it is these very extreme hypotheticals that assist in distinguishing a legal black hole from the even more sinister zone beyond law, the latter of which resemble Carl Schmitt’s contention that sovereign power exists prior to the legal order and thus cannot be constrained by law. While most legal black holes do not give rise to this risk, those that have the potential to usurp fundamental constitutional norms do.

At the time of writing, the Scottish Court of Session’s judgment in Cherry on this same issue was not available; however, the court summary does suggest that it took this question of the constitutional ramifications of prorogation much more seriously:

The Lord President, Lord Carloway, decided that although advice to HM the Queen on the exercise of the royal prerogative of prorogating Parliament was not reviewable on the normal grounds of judicial review, it would nevertheless be unlawful if its purpose was to stymie parliamentary scrutiny of the executive, which was a central pillar of the good governance principle enshrined in the constitution; this followed from the principles of democracy and the rule of law.

In contrast, the Court in Miller No.2 took a narrow reading of the principle of parliamentary sovereignty, rejecting (at [63]) ‘Lord Pannick’s formulation of a wider legally enforceable concept of Parliamentary Sovereignty, distilled to its essence as an ability to conduct its business unimpeded’ on the basis that it runs into ‘difficulties in identifying measures against which allegedly offending action may be judged.’ Equally, however, similar criticisms could be levied at the concept of the rule of law developed and applied in seminal cases such as Anisminic, Evans, and more recently, Privacy International.

Conclusions

It would appear therefore that while courts have jealously guarded their own jurisdiction, should the Supreme Court follow the judgment of the High Court, they would not have afforded Parliament the same courtesy they afford themselves. Thus while a finding of non-justiciability may ostensibly appear the court to be exercising judicial restraint, it is done so in a highly problematic manner, opening up the aforementioned judgments to further accusations of judicial activism.

Ultimately, when there is a clash between the legislature and the executive, it is inevitable that the judiciary gets asked to adjudicate. I would contend that abandonment of non-justiciability in favour of a spectrum of deference is a more nuanced and flexible approach. Such an approach would avoid the aforementioned risks of a legal black hole and take proper account of high political issues that courts may not be suitable for a court to second-guess. It remains to be seen what approach the Supreme Court takes.

Alan Greene is a Senior Lecturer in public law and human rights at Birmingham Law School.

This week’s decision by the Court of Session to rule Boris Johnson’s advice to Her Majesty to prorogue Parliament unlawful has once again put the spotlight on the relationship between politics and the judiciary.

Whether or not you think this is the judges’ fault appears to be one of the emerging dividing lines. To some, the Scottish court has overstepped its proper bounds to stray into territory which is properly the reserve of politics. Others insist that they were only applying the law appropriately.

As the Court of Session’s ruling conflicts markedly with a ruling from the High Court in London on the same question, all eyes are now on the Supreme Court, which will make the ultimate decision on Tuesday.

But the broader question of the relationship between the political and judicial elements of the constitution will remain regardless of their ruling – albeit that a Government defeat might make them more pressing.

Concern about the role of the judiciary predates Brexit. Perhaps the most high-profile group examining this question is the Judicial Power Project, run by Policy Exchange, which maintains a list of 50 ‘problematic cases‘ which it feels evidence a tendency towards judges using developments such as the Human Rights Act and European Union law to carve themselves a new and larger role in our settlement than has historically been the case.

But Brexit has given rise to at least two phenomena which exacerbate the problem. The first is the marked increase of ‘lawfare’ – the use of litigation to pursue political goals – by its opponents. The case before the Court of Session (not the judgment itself) is simply the latest example of this. We have previously chronicled others, including not only Gina Miller’s lawsuit over Article 50 but also the one-sided harrying of the Electoral Commission.

The second is the emergence, partly in response to the above, of what we might call the ‘Enemies of the People‘ school of journalism. This arises when the judges end up in the sights of the popular press – usually the Daily Mail, which distinguished itself this week by outing one of the Court of Session judges as harbouring a “passion for France” – and receive the treatment it usually dishes out to politicians, quangos et al.

We have also seen politicians, most recently Kwasi Kwarteng, demonstrate an increased willingness to take potshots at “biased judges”, and anonymous briefings attacking the Scottish judiciary.

Both Kwarteng and the Mail have come in for heavy criticism for their comments, and the Government at least has rowed back.

But as Enoch Powell once put it, “a politician complaining about the media is like a fisherman complaining about the sea.” Judges and jurists may not be politicians, but the same principle of futility may apply: complaining about the way the Mail covers stories has very rarely deterred it in the past. Why would it now?

If that somewhat fatalistic assessment is correct, there is therefore strong probability that if the judges do end up more prominently involved in political disputes the result could be an increasingly polarised and political attitude towards them amongst press and public – regardless of whether they or legal academia think this ought to happen or not.

“The reason that the constitution is such a high-stakes issue – for all that it can seem dry and arcane – is because it is fundamentally about the rules by which the game is played. Once the impression sets in that the rules are being unevenly applied, or rewritten on the fly, it erodes trust in both rules and umpires alike.

“A system wherein one side believes that those responsible for enforcing the rules are ‘on their side’ and the other believes just as strongly that they’re not is on a fast track to institutional breakdown – as the House of Commons under John Bercow could be argued to illustrate.”

I might have added that it is probably not necessary for either side to actually be right in their perception for such damage to be done. This will frustrate those who prefer to design the constitution independently of the attitudes of those operating within it (“The Fixed-term Parliaments Act is fine, it’s just that nobody understands it.”), but nonetheless if, for example, half the House of Commons thinks the Speaker is biased against it that institution is in trouble,regardless of whether the Speaker is actually biased or not.

Where all this ends up is unclear. We might end up leaning into the judges’ evolving role and adding an element of public and political scrutiny to the appointments process, à la the United States – an idea floated by Lady Hale, the current President of the Supreme Court. Or we might see a future Government take action to tackle some of the mechanisms driving this evolution and guide the courts back towards their traditional posture, which seems to be the preferred course of the JPP.

Either way, it would be best if this question were resolved outside of a fraught constitutional dispute such as Brexit. We can only hope that circumstances permit it.

Statutory ouster of judicial review has long been considered to offend the rule of law. But just what does the rule of law demand in this context, and is ouster really inconsistent with those demands in all circumstances? Some interesting answers to these questions feature in R (Privacy International) v Investigatory Powers Tribunal.

At least since R v Hull University Visitor ex p Page, the landmark decision in Anisminic Ltd v Foreign Compensation Commission has been understood as establishing that all errors of law are jurisdictional in the sense that they render decisions ultra vires (and error of law in this context encompasses all grounds of judicial review). Flowing from that position, it had generally been assumed that any statutory ouster of judicial review must be contrary to the rule of law.

Discussions of ouster have focused on whether and to what extent Parliament has power to achieve this (the constitutional issue), and if so, whether it has achieved it in the particular legislation (the statutory interpretation issue). In Privacy International, these were the two questions posed for the Supreme Court’s determination. On the interpretation issue, as is well known by now, a majority of 4 to 3 held that the purported ouster of judicial review of decisions of the Investigatory Powers Tribunal (IPT) was ineffective. The words in s 67(8) of the Regulation of Investigatory Powers Act 2000 (RIPA) were not sufficiently clear to displace the strong presumption against ouster of judicial review. This amounts to a ringing reaffirmation of Anisminic orthodoxy on the interpretation issue – hence the title of a blog post by Jonathan Metzer: “Anisminic 2.0”. On the constitutional issue, the plurality judgment indicated a view that Parliament probably lacked the power to effectively oust review at all. That would amount to going beyond Anisminic and abandoning its constitutional orthodoxy, but it was obiter and not supported by a majority.

What is less obvious but especially interesting in the Privacy International decision is a different departure from Anisminic. Two of the judgments, together representing five of the seven members of the Court, abandon the Anisminic-derived absolutism about the demands of the rule of law: they accept some limits to the required scrutiny for errors of law. (The decision in R (Cart) v Upper Tribunal (Public Law Project Intervening) had already taken this step, but only in the particular context of the new comprehensive tribunal system.) The two judgments disagree, however, on the nature of the acceptable limits. In this post, I want to draw attention to this aspect of the case.

The limits of the rule of law’s demands: two different versions

The two judgments that qualify the judicial scrutiny required by the rule of law are the plurality judgment given by Lord Carnwath (joined by Lady Hale and Lord Kerr) and the dissenting judgment of Lord Sumption (joined by Lord Reed). These two judgments disagree on whether the ouster clause in this case was compatible with the demands of the rule of law – essentially because they focus on different aspects of the rule of law. But both take the view that some limits on review can be consistent with the rule of law.

Lord Carnwath expressly considers that the Anisminic-derived categorical approach to the scope of review based on notions of jurisdiction and nullity should give way to a more contextual balancing approach (a point noted by Paul Daly). The approach he favours is an extension of the approach established in Cart for determining the scope of review of the Upper Tribunal: the question is what degree and type of scrutiny amounts to sufficient and proportionate protection of the rule of law (paras 127-134).

A crucial part of the answer in Lord Carnwath’s view is that access to the general courts is always necessary, in order to ensure that statutory bodies do not develop a “local law” different from the general law of the land – in other words, it is necessary for ensuring consistent application of the law. That is the sense in which ouster of judicial review of the IPT’s decisions is inconsistent with the rule of law in his view (paras 138-139). The restrictions that can in some contexts be consistent with the rule of law include time limits on review, and limits on the scrutiny of questions of application as distinct from interpretation (paras 133-134). Limits of this kind, however, were not at issue in this case. As far as the IPT is concerned, he suggests elsewhere in passing that permission for judicial review of its decisions should be granted only in cases raising points of general significance (para 112).

Lord Sumption’s dissenting approach involves departing from the Anisminic-derived approach to the scope of review in a different way (paras 182-188): in essence, he would re-introduce the pre-Anisminic distinction between jurisdictional errors and errors within jurisdiction. This solution was also adopted in a slightly different context in Cart by the Court of Appeal, but was rejected there by the Supreme Court. The question in each case, Lord Sumption says, is to identify the statutory decision-maker’s “permitted field”.

His version of the distinction differs from the pre-Anisminic position, in that he would answer the question about the decision-maker’s jurisdiction or permitted field by reference to the nature and function of the decision-making body. Executive or administrative decision-makers must be subject to full scrutiny for questions of law: their “permitted field” is confined to applying the correct legal position, as determined by the courts. In contrast, bodies exercising judicial functions parallel to the High Court have power to interpret the law they apply: their “permitted field” is confined only by features that go to jurisdiction in the narrow pre-Anisminic sense (which in Lord Sumption’s version include breaches of natural justice: para 205). This can be seen as endorsing the suggestion of Lord Diplock in In re Racal Communications Ltd.

It is on this basis that Lord Sumption considers the ouster ought to be given effect in the circumstances of this case: the IPT is a judicial body with the wide “permitted field” that flows from this function, and the challenge in issue alleged an ordinary error of law, well within that permitted field (paras 197-198). Only if the IPT went outside that permitted field would the ouster no longer protect its decision, because only then would such effect render the IPT a law unto itself.

The rule of law reasoning goes to both the interpretive and the constitutional issue

Both judgments reaffirm the very strong interpretive presumption against ousting judicial review (although they do have different approaches to this): only exceptionally clear and explicit wording could achieve this. Both further agree on the qualification that the presumption applies only where ouster would be contrary to the rule of law. The main reason for the dissent, then, lies not in any fundamental difference between the approaches to interpreting ouster clauses. Rather, it lies in the different views outlined above as to whether the ouster of judicial review in this particular case is consistent with the rule of law.

On the constitutional issue, as already noted, Lord Carnwath’s plurality judgment in obiter departs from the orthodoxy that the presumption against ouster is rebuttable by sufficiently clear words, instead taking the view that Parliament lacks the power effectively to oust judicial review. However, just as the interpretive presumption only applies to ouster that is inconsistent with the rule of law, for the plurality the same goes for this constitutional limit on Parliament’s power. Even in the face of the clearest wording, it is “ultimately a matter for the court to determine the extent to which [an ouster] clause should be upheld”, and this turns on “the level of scrutiny required by the rule of law” (para 144). In this judgment, the discussion of whether the s 67 ouster is compatible with the rule of law is found in the second part devoted to the constitutional issue.

Implications: confirming that channelling of judicial review is acceptable?

Where all of this leaves the law on ouster and the rule of law is open to debate: Lord Carnwath’s discussion is part of obiter comments by a plurality rather than a majority, while Lord Sumption’s is part of a dissent. Given the differences between the two judgments as to the demands of the rule of law in this area, it may be going too far to say that the five judges who subscribed to these two judgments represent a majority and hence binding authority on any aspect of the rule of law issue. However, even short of any binding authority, it is surely significant that five of seven members of the Court in this case abandoned the Anisminic-derived assumption that the rule of law always requires judicial review for all errors of law.

This recognition of qualifications to the demands of the rule of law helps make sense of limits on judicial review that have long been accepted (a point touched on by Lord Carnwath). The most commonly noted accepted limits are statutory time limits (see Smith v East Elloe Rural DC and R v Secretary of State for the Environment, ex p Ostler. A similar accepted limit is found in provisions delaying access to review until a decision-making process has been completed (see R v Cornwall County Council, ex p Huntington [1994] 1 All ER 694). In both types of cases, courts have accepted that there can be good reasons for such limits.

The law is and has been less certain on the acceptability of limits on review in the form of requiring recourse to alternative statutory avenues, either before judicial review is available or even as the sole available recourse. In the UK, exhaustion of other remedies is a general requirement quite apart from any ouster clause. This merely delays rather than excludes judicial review.

In jurisdictions such as New Zealand, where there is no such general requirement to exhaust other remedies, courts have given effect to ouster clauses that take this form of requiring use of alternative statutory avenues. The condition is that those alternatives must represent adequate avenues of scrutiny and recourse, and that appears to require access to the High Court in some form and at some stage (see Tannadyce Investments Ltd v Commissioner of Inland Revenue). It remains uncertain and disputed what counts as adequate avenues of recourse (see H (SC 52/2018) v Refugee and Protection Officer (overturning the Court of Appeal decision discussed by Daly).

In the UK, an obiter in R (A) v Director of Establishmentsof the Security Service went even further. The Court gave effect to another provision of RIPA, s 65, that confers exclusive jurisdiction over Human Rights Act 1998 claims against the intelligence services on the IPT. The main reason was that this provision ousted no pre-existing remedy (having been enacted as part of the same package as the HRA itself). The relevant reason for present purposes, however, was that s 65 did not oust scrutiny of the intelligence services, but merely allocated that scrutiny to another body of like standing and authority to the High Court (para 23). In an obiter dictum that is now expressly overruled by Privacy International (para 109), Lord Brown further considered that there was no constitutional objection to the s 67 ouster of judicial review of the IPT (para 23). In relation to HRA claims, that would have meant that the IPT’s jurisdiction was both exclusive and final, rather than merely being a statutory avenue that had to be exhausted before judicial review could be sought.

All these statutory or common law limits operate to “channel” rather than exclude judicial review (see Paul Daly here and here). That can be seen as rendering at least some of them compatible with the demands of the rule of law. The parts of the Privacy International judgments outlined above lend support to this line of argument. The plurality judgment, however, unlike Lord Sumption’s dissenting judgment, does not support substitution of alternative statutory avenues other than the High Court as the exclusive and final remedy.

With many thanks to Paul Daly, Mark Elliott, David Feldman, Marcelo Rodriguez Ferrere and Alison Young for helpful comments on an earlier draft of this note.

Hanna Wilberg, Associate Professor, Faculty of Law, University of Auckland

While the prorogation of Parliament has generated political controversy, constitutional lawyers are asking whether the government acted legally in advising the Monarch. The legal challenges to the prorogation will face a number of hurdles. Even if the prerogative power is justiciable, there are difficult questions in identifying the specific legal issue. When writing about a potential challenge in June, Lord Pannick stated that one legal objection is that ‘the prime minister would be seeking to prorogue parliament for the purpose of avoiding parliamentary sovereignty on an issue of significant constitutional importance’. This post will explore a related line of argument, which focuses on proroguing Parliament as a means to avoid political accountability (so the argument does not rely on the language of sovereignty). The starting point in the line of argument is that the prorogation will to some degree hinder Parliament in whatever it wants to do in the period immediately prior to Britain exiting the EU. That goes beyond the potential to enact legislation or pass a motion of no confidence, and also includes the ordinary channels of political accountability and scrutiny of government.

Against this starting point, it can be countered that the government is not under a legal duty to maximise political scrutiny of its actions or make political opposition easier. However, the challenge to the advice to prorogue does not rest on such a vague or open-ended duty. Instead, the argument is that the government has acted contrary to existing expectations and past practice and done so at a time of political sensitivity. Parliament still has some days to act (so the government supporters say accountability is not foreclosed), but the measure means Parliament has less time than would normally be the case. While the government can still be held to account retrospectively in future months (so some accountability will be possible), by then it may be too late to reverse the government’s decisions (if there is an exit from the EU with no deal). The decision to act contrary to prior expectations and practice therefore warrants a high burden of justification from the government.

So far, an objection to the prorogation has been stated, but does this become a legal objection? Lord Sumption has argued not, stating that the objection is that the government’s action was ‘taken for questionable political motives’ and that is not sufficient to render the decision unlawful. According to that view, the remedy lies in the political sphere, not in the courts. However, Lord Sumption’s reference to ‘political motives’ does suggest a possible challenge on the basis that the government acted for political purposes. The political purposes doctrine has long been a ground for the judicial review of executive action. Over a century ago, Farewell LJ stated that political considerations are ‘pre-eminently extraneous’ (R v Board of Education (1910)). Exercising a statutory discretion simply to avoid political embarrassment will therefore fall foul of this principle (Padfield v Ministry of Agriculture, Fisheries and Food (1968)). Similarly, a decision not to stock certain newspapers in a public library simply because a local authority disagrees with the paper’s editorial stance would be unlawful (see R v London Borough of Ealing and Others, ex p Times Newspapers Ltd (1987)). If it can be established that the government is proroguing Parliament for political purposes, is the decision vulnerable to legal challenge on that basis?

The phrase ‘political purposes’ can be unhelpful. For a system of democratic accountability to work, politicians are expected to act for political purposes – most obviously in seeking to win votes by devising policies that will attract public approval. As Lord Bingham stated in Porter v Magill:

‘Elected politicians of course wish to act in a manner which will commend them and their party (when, as is now usual, they belong to one) to the electorate. Such an ambition is the life blood of democracy and a potent spur to responsible decision-taking and administration. Councillors do not act improperly or unlawfully if, exercising public powers for a public purpose for which such powers were conferred, they hope that such exercise will earn the gratitude and support of the electorate and thus strengthen their electoral position. The law would indeed part company with the realities of party politics if it were to hold otherwise.’

What makes a political purpose unlawful? Lord Bingham went on to elaborate:

‘a public power is not exercised lawfully if it is exercised not for a public purpose for which the power was conferred but in order to promote the electoral advantage of a political party.’

An obvious example would be a decision to give significant public funds to the governing political party (and no other party) for the simple purpose of conferring an advantage in a coming election. The doctrine applies more easily to statutory powers, which may be conferred for a specific purpose (or have such a purpose inferred). However, there is no reason why the doctrine could not apply to a clear politically motivated misuse of a prerogative power.

Sometimes the court explains the legal objection as applying to ‘purely political’ purposes. Such a phrase indicates that the measure in question is devoid of any merit aside from the political considerations and is thereby an abuse of power. As Lord Scott explained in Porter v Magill:

‘there is all the difference in the world between a policy adopted for naked political advantage but spuriously justified by reference to a purpose which, had it been the true purpose, would have been legitimate, and a policy adopted for a legitimate purpose and seen to carry with it significant political advantage.’

That, in turn, gets the court into difficult questions of whether the decision is ‘purely political’ or whether other grounds can support it. That is a key issue in the current controversy, as the government claims that the prorogation is not related to Brexit and nothing out of the ordinary.

It is possible to take the legal argument further, so that the question is not simply whether the decision is ‘purely political’ or not. Instead, the issue is also about how the political advantage is secured. A political purpose may be legitimate where it is implementing a policy in the belief that the public or MPs will approve of it. As stated, the system of representative democracy is based on such incentives. Accordingly, while a promise or decision to implement popular measures immediately prior to an election may be rhetorically characterised as a ‘bribe’, it is not automatically unlawful simply as it is calculated to secure political support. The legal objection arises where the advantage is secured by short circuiting the very process of political accountability that legitimates the exercise of public power. Along such lines, gerrymandering (and the analogous issue in Porter v Magill) is problematic because it taints the electoral process, through which such policies are to be publicly evaluated. Such a measure is not political in the sense of generating political approval, but instead seeks to undermine the channels through which political disapproval can be expressed. Under this line of argument, the key distinction is between the government playing its hand of cards well to secure a desired outcome, and the government attempting to stack the deck in its favour.

The line of argument could apply not just under the purposes doctrine and could be relied on in a rationality challenge (which may arise where it cannot be shown that the decision was primarily/purely political) to require a particularly strong justification from the public body. While many of the leading cases discuss the issue in relation to electoral advantage, there is no reason to limit the objection to party politics and elections. A decision taken simply to avoid political embarrassment may be unlawful, even when outside the context of an election. Similarly, the example of newspapers in a public library given earlier is not about an electoral advantage. More broadly, the decision in Evans v Attorney General can be understood as requiring a high level of justification before ministers can prevent the release of information that would otherwise be made available under a statute designed to promote political accountability.

An election is one component of a representative democracy, but there are other processes that are also crucially important. Government is expected to be accountable to Parliament. In this context, it is legally objectionable for government to use its powers to avoid or subvert the ordinary processes of scrutiny, checks and accountability because such processes happen to be politically inconvenient. The line of argument points to a key objection to the prorogation, that it is a political measure designed to curb the opportunities for accountability during a sensitive period in which an irreversible decision of political and constitutional importance may be made. For that reason, the argument runs that the matter cannot simply be left to the ordinary political channels to express opposition to the measure, as those ordinary channels are being closed down for a temporary (yet crucial) period.

Whatever is decided on the prorogation, it may not be decisive in relation to Brexit. Even if Parliament has extra days to scrutinise government, it is not clear what exactly it would do and whether opponents to the government’s policy would be out-manoeuvred. However, the legal challenge will raise an important set of constitutional issues, with possible implications for the way a government can manage the channels of political accountability.

With thanks to Jeff King and Mark Elliott for comments on an earlier draft.

Jacob Rowbottom is a Professor of Law at the University of Oxford and author of Media Law.

Two years ago on this blog, we drew attention to the immigration judicial review system—by far the most active area of judicial review litigation and the vast majority of all judicial reviews in England and Wales. In that post, we identified why there was a pressing need for further empirical exploration of the topic: not only was there a lack of understanding of litigation patterns but, on the basis of the evidence available, it seemed there was an issue of whether disputes were being channelled appropriately to judicial review (Paul Daly’s reflections on this post are available here). Since then, we have set about trying to build the evidence base that we argued was necessary to advance understanding. We collected data on the types of immigration judicial review claims and the views and experiences of people involved in the system. Our approach to the research was to collect both quantitative and qualitative data. We then combined the data gathered through these methods to inform our analysis. Our data included case-file analysis of Upper Tribunal judicial review cases and interviews with judges, representatives, users of the system, and others. We also undertook observations. Our full findings are set out in a detailed report, which we are publishing today. In this post, we provide a summary of our key conclusions.

Following the transfer of most immigration judicial reviews from the Administrative Court to the Upper Tribunal in 2013, the tribunal’s caseload was initially very high, but has since declined. Most judicial reviews are fact-specific; they turn on their own specific facts and circumstances and tend not to raise wider points of law and policy. Many claims raise issues concerning the application of asylum and human rights law, especially the right to respect for family and private life under Article 8 of the European Convention on Human Rights. Many judicial reviews are lodged in an attempt to secure an in-country right of appeal (instead of an out-of-country appeal). While there is an ongoing debate about the relative advantages of appeals as against judicial review, the removal of appeal rights under the Immigration Act 2014 does not seem to have led to a significant increase in judicial reviews.

Many judicial review claims are refused permission because the Upper Tribunal decides that they are unarguable. The use of template, standard, and unparticularised grounds of challenge is a common, though not universal, feature. There are continuing concerns regarding the variable quality of representation for claimants. Action has been taken to deter lawyers from repeatedly lodging abusive and vexatious judicial review claims. Anecdotally, this may have led to a reduction in the volume of judicial reviews. There is evidence that some people are at risk of exploitation by unscrupulous advisers. At the same time, good quality representatives work under a range of pressures and find that this environment can hinder their work.

The majority of judicial review claims are refused permission to proceed. Nonetheless, there are concerns about the quality of initial Home Office decisions. We encountered instances of poor decision-making effectively challenged by way of judicial review. We found that 20 per cent of the cases we examined are settled out of court, with an agreement that the case be reconsidered by the Home Office. We also encountered the phenomenon of “repeat judicial reviews.” That is, when a second judicial review is lodged against a fresh Home Office decision which is very similar to the initial decision. This was symptomatic of wider issues of poor communication between the Home Office and claimants.

As regards the categories of immigration judicial reviews, there is a wide range of immigration decisions that are challenged by way of judicial review. However, much of the caseload is concentrated within a few categories of case: asylum and human rights claims certified as clearly unfounded; fresh asylum and human rights claims; and removal decisions. Many judicial review challenges are lodged either to secure an in-country appeal or to prevent or delay an individual’s removal from the country. Challenges to Home Office delay used to feature prominently in the caseload, but this is no longer the case.

There is a wider debate concerning the appropriate remedies that should be available. Judicial review is an important remedy, but its scope is relatively limited. By contrast, appeals to tribunals involve a full re-hearing of a case. We encountered the view from representatives that a right of appeal to the tribunal is a more preferable and effective remedy than judicial review. We also encountered the argument that some specific types of decisions that affect an individual’s fundamental rights, but are currently non-appealable, should attract a right of appeal. These include decisions concerning human trafficking, statelessness, and domestic violence.

As regards claimants, we found evidence that they are often desperate and find the process difficult to understand and stressful. Most, though not all, claimants are legally represented, but the quality of such representation varies enormously. Most claimants are self-funding. Very few claimants appear to be in receipt of legal aid. The process for seeking Exceptional Case Funding is perceived as being difficult. We encountered concerns about the ability of litigants in person to navigate the system effectively. The judicial review process was not designed with litigants in person in mind and there is accordingly a need to address the situation of litigants in person by, for instance, greater provision of guidance. The Upper Tribunal is aware of this challenge.

The wider programme of tribunal modernisation will in the future mean that aspects of the judicial review process will be digitalised. This will include both online applications and document-sharing. This is likely to enhance the efficiency of the process. Nevertheless, the parameters of the project are still being developed. More information needs to be made public about the project to enhance transparency and give the public and stakeholders the opportunity to scrutinise the project’s development. The greater use of Tribunal Caseworkers, another part of the ongoing reforms, will free up judicial time, but needs appropriate monitoring and oversight.

There is little reason to think that alternative dispute resolution would operate effectively as an alternative to judicial review in the immigration context. Nonetheless, the various forms of alternative dispute resolution already built into the process, such as administrative review, re-application, and settlement, could be made to work more effectively. The full implications of the withdrawal of appeal rights by the Immigration Act 2014 requires wider evaluation. The question whether to restore full appeal rights is a policy question. Nonetheless, it is arguable that certain decisions affecting issues of fundamental rights – human trafficking, statelessness, and domestic violence – could be more effectively handled through appeals than judicial review.

From one perspective, our findings pertain to the immigration judicial review system and we hope the new evidence we gather benefits the advancement of that specialist discussion. From another perspective, however, this is also a study of what many judicial reviews look like in a state where public law litigation typically revolves around large machine bureaucracies. It is striking how different the realities of this area of litigation are next to the discussion of judicial review often found in constitutional theory.

Professor Robert Thomas is Professor of Public Law at the University of Manchester.

Dr Joe Tomlinson is Lecturer in Public Law at King’s College London and Research Director of the Public Law Project.

The Revolution established the sovereignty of Parliament as a form of judicial review of executive power, it is submitted. The High Court of Parliament, a supreme court and legislature, validated and authorised executive power, by demonstrating that executive power acts ultimately inside that independent forum rather than outside of it. The Bill of Rights required William III to act ultimately through the High Court of Parliament, when he made law, suspended law or taxed for example. Parliamentarians did not presume to bear a political supremacy over the executive power which remained monarchical until 1832. Instead the Revolutionary sovereignty of Parliament involved the supreme court and legislature authorising the monarch to act as the Sovereign, in Parliament. Three objections to this view are possible.

Dicey said of statutes that, ‘being passed to meet special grievances, bear a close resemblance to judicial decisions, and are in effect judgments pronounced by the High Court of Parliament’. But otherwise he neglected the curiality of the High Court of Parliament. This view fails to accommodate the sovereignty of Parliament in 1688. It also fails to accommodate an element of that sovereignty, the need for judicial independence from the executive power, upon legislators instituting themselves as the parliamentary executive through responsible government in 1832. Whereas the rule of law as established by the Revolutionary sovereignty of Parliament asserted judicial independence from the executive power, that is no longer the case under legislative supremacy as articulated by Dicey. His reduction of the sovereignty of the High Court of Parliament, to legislative supremacy, is inferior to the model proposed in this post, because his model did not ‘get in’ judicial independence. We shall see that his legislative supremacy also fails to accommodate Jackson.

Second Objection

The second possible objection to the view proposed in this post also relates to the O’Connell separation of the supreme court from the legislature. It is arguable that it undid the parliamentary character of the supreme court, and hence the Revolutionary curiality of Parliament to independently validate and authorise executive power. However, s.4 of the Appellate Jurisdiction Act 1876 referred to the judicial House of Lords as ‘Her Majesty in Her Court of Parliament’, a term Lord Bingham used as late as 2002. This indicates that the parliamentary character of the supreme court endured, at least until its repeal by the Constitutional Reform Act 2005, discussed shortly. But if it endured there have been few occasions since O’Connell when the supreme court could have acted separately from the political branches, to demonstrate that Revolutionary capacity to validate and authorise the executive power, independently of legislators who now generate the executive power themselves as the parliamentary executive. Arguably, review of legislation under the European Communities Act 1972 gave the supreme court such a chance, but in such cases it could be said that the court was merely acting under the authority of the legislature.

For this reason Jackson is Revolutionary. The reader will recall that the Blair Government sought to restrict hunting, and used the Parliament Act 1911 to by-pass the legislative House of Lords when enacting the Hunting Act 2004. Doubts as to validity continued to attend the new Act, despite it gaining Her Majesty’s assent. Unlike the judgments on European legislation, the need for an independent stamp of authority on the 2004 enactment precluded the supreme court from purporting to act on behalf of the legislature. Lord Bingham identified ‘Parliament’ with the legislature alone, and observed:

The appellants have raised a question of law which cannot, as such, be resolved by Parliament. But it would not be satisfactory, or consistent with the rule of law, if it could not be resolved at all. So it seems to me necessary that the courts should resolve it, and that to do so involves no breach of constitutional propriety [27].

The Attorney General’s acquiescence in the appeal [27] to the judicial House of Lords, and the judgment itself, revealed that as in 1688 the executive power today is not ultimately validated by its own assertions of its authority; whether the parliamentary executive in the legislature enacting legislation proposed by the same executive power, or the royal assent of the monarchical executive. Instead executive power is lawfully validated and authorised when it is required to act through an autonomous forum, the High Court of Parliament, a supreme court and legislature. When the UK supreme court reviewed and authorised the Hunting Act 2004 in Jackson, judicial review was differentiated from political forms of review of executive power, and the former was shown to be more independent, and therefore more authoritative. In Jackson, as at the Glorious Revolution, the High Court of Parliament exercised the sovereignty of Parliament to independently validate and authorise executive power. The O’Connell separation of the supreme court from the legislature furthered the judicial independence founding that sovereignty, rather than impeding or even undoing it.

Third Objection

It is convenient to consider the third possible objection to the view proposed in this post, in terms of recent commentary on Privacy International. Section 1 of the Constitutional Reform Act 2005 perpetuated the rule of law as it existed on 24 March 2005, just before Jackson was handed down on 13 October 2005. Mike Gordon describes Lord Steyn, Lord Hope and Baroness Hale as overtly speculating in Jackson about ‘the possible existence of common law limits on parliamentary sovereignty’. Professor Gordon proceeds to use that speculation as a vantage point for viewing the Supreme Court’s recent treatment of ouster clauses in Privacy International. The Court addressed a question about s.68(7) of the Regulation of Investigatory Powers Act 2000, partly in terms of whether Parliament can legally oust review of decisions by a body such as the Investigatory Powers Tribunal. A 4-3 majority of the Supreme Court rejected a statutory provision that ramped up the language of another ouster clause, rejected in Anisminic v Foreign Compensation Commission by the UK supreme court half a century earlier. Gordon says that ‘(t)o assert that it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review [131] is necessarily to reject parliamentary sovereignty, which functions to establish exactly the opposite state of affairs’.

Conclusion

In 1688 the executive power personally wielded an ‘ouster clause’. James II claimed that his extra-parliamentary prerogative was superior to his prerogative inside the High Court of Parliament, a supreme court and legislature, such that he could suspend the effect of legislation against Catholics. Parliamentarians defeated that claim by subjecting executive power to the sovereignty of Parliament, through the Glorious Revolution and subsequent legislation such as the Bill of Rights. The claim of the parliamentary executive to wield ouster clauses today similarly seeks to oust the jurisdiction of independent courts, despite Jackson confirming the capacity of the supreme court to independently validate and authorise executive power. The supreme court’s validation and authorisation of the Hunting Act 2004, after the Constitutional Reform Act 2005 gained assent, demonstrates its enduring membership of the High Court of Parliament, its continuing participation in the sovereignty of Parliament, and judicial independence from executive power. The institution of legislative supremacy by responsible government, the O’Connell separation of the supreme court, and the perpetuation of the rule of law by the Constitutional Reform Act articulate the need for judicial independence from executive power, as a feature of the sovereignty of the High Court of Parliament. The Supreme Court must continue to participate in the sovereignty of Parliament, by independently reviewing ouster clauses as in Privacy International.

I am grateful to Alison Young and Melissa Naylor for their very helpful comments on this post.

In a recent Times article, Lord Pannick QC – leading Counsel in the Miller litigation – argues that if a Prime Minister were to advise HMQ to prorogue parliament to achieve a No Deal exit, an application could be made to the courts to determine the lawfulness of such advice. Sir John Major said on the Today programme on 10 July that he would personally bring a judicial review of any decision by the Prime Minister to advise prorogation.

After briefly considering issues of timing and justiciability, Lord Pannick makes three main arguments as to why, in his view, advice to prorogue parliament to achieve No Deal would be ruled unlawful by the courts. First, he claims that proroguing parliament would contradict parliamentary sovereignty. Secondly he claims the urgency of the situation would make prorogation unlawful. Thirdly, he argues that such advice would be ‘seeking to evade parliament because it has previously made clear its wish to prevent a no-deal Brexit’.

While Lord Pannick’s argument is characteristically attractively presented, there are some significant difficulties with it. Of course, it must be borne in mind that a brief 800 word article in a newspaper cannot do justice to the full argument.

Space precludes detailed consideration of issues of timing but suffice to say that Miller was incredibly expedited, including leapfrogging the Court of Appeal, but it still took six months.

A caveat on the potential use of prerogatives in the Brexit context

I have previously defended the theoretical possibility of the use of Royal Assent and Queen’s Consent in some extreme circumstances if there were unprecedented moves by a shadow executive undermining the procedures of the House of Commons. I have ultimately justified these responses because the remedy of a vote of no confidence remains available.

My view on prorogation is considerably more conflicted, precisely because any overtly political prorogation to avoid a vote of no confidence contradicts what I view as the central principle of the political constitution which is the doctrine of confidence. Parliament represents a dialectical relationship between the two balancing forces of executive and legislature, both of which we choose in our bifurcated vote at general elections. When we vote in the UK, we choose a local MP, but in reality we also vote on a manifesto and on a slate of those seeking executive office.

Justiciability

The most serious problem facing any potential litigation relates to justiciability. In his article, Lord Pannick lightly touches on case law relating to passports, ex gratia payments and other successful applications to the court for review of the exercise of prerogative power. Unfortunately, these examples fall on one side of a clear red line for the courts in terms of the kinds of prerogative that they are normally prepared even to consider.

In GCHQ, Lord Roskill famously listed a series of prerogatives that he held would remain outside the court’s purview even after the test set out by the court for judicial review transitioned from the source of the power to the subject matter of that power. Technically the list is obiter dicta, of course.

The Roskill list includes ‘the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers’ (p418). The prorogation of parliament falls squarely within the category of prerogatives set out in this list. This is particularly true in this case because Lord Roskill states that it is prerogatives ‘relating to’ any of the above list that are in this category – this obviously includes prorogation which is historically connected to dissolution.

It is also worth noting that in the later case of Everett, a ‘high policy’ test for the prerogatives on the list was instituted, and that test has never been doubted. Indeed, in Abbasi, Lord Phillips MR expressly endorsed the ‘high policy’ test in considering the actions of the government under the foreign affairs prerogative.

Lord Phillips also used the phrase ‘forbidden areas including decisions affecting foreign policy’ ([106]) which also underscores the unlikelihood of any judicial intervention in matters as controversial and politically explosive as a political decision to prorogue parliament to achieve a No Deal exit. It is perhaps also worth mentioning that, in this particular case, a decision to prorogue would have direct and dramatic effects on foreign policy.

It is suggested therefore that prorogation would therefore fall well within the ‘high policy’ test given the intense political controversy that would surround such an action. It is therefore extremely challenging to see how such advice could be justiciable on any orthodox reading of long established case law. This rule arguably rests, in large part, on a point blank refusal to be drawn into controversial political matters. This deeply wise judicial instinct is strongly to be commended.

Argument from Miller?

It might be thought that the justiciability argument must be tempered by the fact that in Miller itself, a high policy prerogative (treaty power) was considered to be justiciable – indeed the justiciability argument was not even raised at the Supreme Court stage having been resoundingly rejected by the High Court. This would be to miss a crucial distinction between Miller and a potential prorogation. The courts have never held that a prerogative is non-justiciable when it is used in a way that intersects with a statute. In those circumstances, a completely different test is applied.

If statute overlaps with the prerogative, it goes into abeyance. Where a statute does not overlap, the test is whether the exercise of the relevant prerogative would frustrate the intention of parliament in any Act (Miller [51]). In such situations, the court is not concerned in any way with whether the nature of the prerogative concerns ‘high policy’. This is for the simple reason that statute trumps prerogative and it is the duty of the courts to see that the will of parliament as expressed in statute prevails. That is why the justiciability of the treaty prerogative was not an issue in Miller, despite it being on Roskill’s list.

Parliamentary Sovereignty means the will of parliament as expressed in statute

It is trite law that the will of parliament can only be understood through Acts of Parliament as a matter of law. Mere motions will not suffice. If they had, the motion in the House of Commons in December 2016, calling for notification under Article 50 to be sent, would have disposed of the Miller litigation.

Lord Pannick’s appeal, therefore, to the generic idea of ‘parliamentary sovereignty’ must therefore be approached with some caution. Parliamentary sovereignty means nothing more, and nothing less, than that each and every Act of Parliament that is on the Parliamentary Roll is supreme over any other law or legal power. In other words, whatever the Crown-in-Parliament formally enacts is binding law, save that Parliament cannot bind its successors.

It follows that if Lord Pannick could identify a particular provision of a statute that would be frustrated then the objections based on justiciability would immediately dissipate. Unfortunately, it is difficult to identify any such statutory provision. Instead, the much more nebulous language of ‘evading parliament’ is deployed. This leaves his argument looking somewhat thin.

The problem is that isolating a sound legal argument from ’evading parliament’ is difficult, whatever the constitutional and political arguments. This is not least because there is no particular statute to which reference could be made. Evading political scrutiny and debate is not a legal argument.

It seems unlikely that the courts would declare something unlawful based on it frustrating a provision of a non-existent Act that the courts would be predicting parliament might pass at some unknown time in the future. That would be to extend the principle in Fire Brigades Union by some distance, to put it mildly.

Lord Pannick goes on to claim that one aspect of the claim would be that, in his view, parliament has ‘made clear its wish to prevent a no-deal Brexit’. This particular claim is hard to follow. Nowhere in EUNoWA, EUWA or elsewhere has parliament made clear in legislation that in the event of there being no deal agreed with the EU27, the government is legally required to take steps to prevent the UK exiting the EU on that basis. It is true that a number of motions of the House of Commons have expressed that sentiment or similar but that is entirely another matter and, strictly speaking, irrelevant as a matter of law.

It could be argued that the silence in relevant statutes on any legal steps to be taken in the extensive legislation that has been passed since the referendum simply reflects the fact that few people expected that No Deal could actually happen. This is a reasonable stance. Nevertheless, it remains the case that the Article 50 process is in fact inexorable and (leaving aside revocation) remains outside the direct control of parliament, particularly if, say, the EU27 decided not to grant another extension.

It is also the case that there are no provisions altering the legal default outcome (for example by mandating a revocation) in the event that there is no agreement with the EU27 regarding the orderly withdrawal of the UK from the EU. The only possible exception might be the Cooper-Letwin Act which mandated the Prime Minister to seek an extension from the EU27 (I am grateful to Gavin Phillipson for suggesting this point in conversation).

It might be argued that this represents evidence that the will of parliament is that a delay is preferable to exiting without a deal. The problem with this argument is that Cooper-Letwin was very specific in terms of how and when it applied and its provisions are now spent. Really, the Act needed to have made further provision for the legal consequences in the event of No Deal. Attempting to read anything more into that Act seems implausible.

However alluring is the argument that the courts could step in, it is difficult to see how the exercise of the prerogative of prorogation in this case could be said to conflict with any particular provision of any statute.

Breaking new legal ground

Given the strength of the judicial dicta against Lord Pannick’s position, it would require an innovative and bold approach by the judiciary for any case to succeed. The courts would have to construct a novel rule that the mere possibility of Parliament wishing to pass some future legislation means that a purely political prorogation would be unlawful. This possibility cannot be ruled out but it would drive a coach and horses through long standing case law on justiciability, with unknown future effects.

Political controversy

The idea of the courts ensuring that parliament can do its core job of considering Brexit throughout the Autumn is undeniably attractive. It is suggested, however, that the courts would be rightly reluctant to intervene in such an intensely controversial political question, especially without the protection of an existing Act of Parliament that intersects directly with the relevant prerogative. To do so would be to draw the judiciary into the centre of a political firestorm. However politically controversial a prorogation might be, judicial intervention would only make the situation worse. Two wrongs do not make a right.

In those circumstances, reliance must be placed on the relevant parties being persuaded that advising HMQ to prorogue would be deeply politically and constitutionally inappropriate, rather than illegal or ultra vires.

Conclusion

This post has sought to address the possibility of litigation to challenge the lawfulness of using the prorogation prerogative politically. The proposal suffers from serious flaws, not least lack of time. It has been argued that the use of the prerogative of prorogation is not justiciable as ‘high policy’ in a ‘forbidden area’.

It has also been suggested that the argument that parliamentary sovereignty would be frustrated by prorogation is flawed because there is no particular statutory provision that would be frustrated by prorogation.

Furthermore, it seems highly unlikely that the courts would be drawn into what remains, in a political constitution, a matter of purest politics that should be dealt with by elected politicians, when parliament reconvenes, or at the ballot box.

In the recent case of R (Campaign Against Arms Trade) v Secretary of State for International Trade [2019] (hereinafter CAAT), the Court of Appeal invalidated the UK government’s decision to grant licences for the sale of military equipment to Saudi Arabia for possible use in the conflict in Yemen. The court found that the government had violated Article 2.2 of the EU Common Council Position 2008/944/CGSP, as adopted in the Secretary of State’s 2014 Guidance. Article 2.2 compels Member States to deny a licence for the sale of military equipment to other states if there is a clear risk that this equipment might be used ‘in the commission of serious violations of international humanitarian law’.

In 2015 a coalition of nine states led by Saudi Arabia commenced military operations against the Houthis in Yemen. The court in CAAT held that the question of whether there was a historic pattern of breaches of international humanitarian law on the part of the coalition – and Saudi Arabia in particular – was central to the estimation of the risk of future violations. The ‘historic pattern question’, however, was not addressed by the UK Government. That, according to the court, made the decision-making process irrational and therefore illegal. The court invalidated the granting of the licenses – but allowed the Secretary of State to reconsider his decision, by taking into account the historic pattern of breaches of international humanitarian law on the part of the coalition.

This case gives rise to interesting questions about justiciability, judicial deference and the scope of judicial review. Here, however, I wish to focus on the confusing yet common way in which the court used ‘rationality’ as ground of judicial review.

Rationality is a well-established ground of judicial review in UK public law. At the same time, the meaning of ‘rationality’ as ground of review is far from clear. Currently in UK public law, rationality review is understood in the following ways:

(1) Rationality as indistinguishable from reasonableness. It is quite common in UK public law to use the terms ‘reasonableness review’ (or Wednesbury reasonableness) and ‘rationality review’ (or Wednesbury rationality) indistinguishably, yet without always explaining the exact meaning of these grounds of review. It was probably the influential view of Lord Diplock’s in the GCHQ case (1984) that made the most significant contribution to enshrining the conceptual mistake of seeing reasonableness and rationality as indistinguishable. This was done by classifying the grounds of judicial review to three main categories: ‘illegality’, ‘irrationality’ and ‘procedural impropriety’; and by clarifying that ‘irrationality’ is in fact identical to ‘Wednesbury unreasonableness’.

(2) Rationality as a distinct ground of review that, compared to reasonableness, sets a lower hurdle for the administrative body. This approach, albeit within a specific context, was taken by the Supreme Court’s in its decision in Evans (2015), according to which a demand to base a decision on ‘reasonable grounds’ sets a higher hurdle than ‘mere rationality’ (paras 91, 129).

(3) Rationality as a ground of review that focuses on the decision-maker’s ‘mental process’ as opposed to reasonableness review that focuses on the outcome – i.e. the decision-maker’s decision. See for example Lord Sumption’s view in Hayes (2013) that ‘reasonableness is an external, objective standard applied to the outcome of a person’s thoughts or intentions… A test of rationality, by comparison, applies a minimum objective standard to the relevant person’s mental processes’ (para 14).

(4) Rationality as a mega ground of judicial review that covers more specific grounds of review such as acting in bad faith, acting capriciously or arbitrarily etc. For this view see also in Hayes, where Lord Sumption held that ‘a test of rationality… imports a requirement of good faith, a requirement that there should be some logical connection between the evidence and the ostensible reasons for the decision, and (which will usually amount to the same thing) an absence of arbitrariness, of capriciousness or of reasoning so outrageous in its defiance of logic as to be perverse’ (Hayespara 14).

(5) Rationality as fairness, consistency or equality. This approach was taken in Gallaher (2018), especially by Lord Carnwath and Lord Sumption who asserted that it is irrational to treat like cases differently – if there is no ‘objective justification’ for the different treatment {paras 27, 43, 44, 55 (Lord Carnwath) and para 55 (Lord Sumption)}.

(6) ‘Instrumental rationality’ that requires logical or causal relation between means and end. Instrumental rationality is in fact part of the principle of proportionality. It is common to refer to the principle of proportionality as a four-stage test which includes legitimate aim; suitability (or rational connection); necessity (or applying the least intrusive measure); and proportionality in the narrow sense (proportionality stricto sensu). When we apply the second stage that sets the suitability or rationality test we are asking whether the means (that is, interfering with a protected right or interest) can achieve the legitimate aim of the law or of the administrative decision. If there is no rational connection of any kind between the means and the end, that is, if the means cannot or does not achieve the end, then this is a decision that no rational person could have made.

In the recent CAAT case, rationality review was applied in a rather confusing way. At the core of its reasoning, the court equated rationality with the duty to take into account all relevant considerations. In other places in the judgment rationality was also equated with reasonableness. The court repeatedly held that it was irrational to not take into account the historic pattern of breaches of international humanitarian law on the part of the coalition while making the decision about granting the licenses (paras 35, 57-59, 62, 139, 144, 145, 153). The court relied on Tameside (1977) that established the proposition that a public body has a duty to carry out a sufficient inquiry prior to making its decision. The court emphasised that ‘the only legal error which is alleged to have been committed is founded on the public law doctrine of irrationality’ and that rationality refers to the decision-making process, and in our case – the duty to take into account all relevant considerations (para 57).

The problem is that not taking all relevant considerations into account is a distinct, well-established ground of judicial review in public law. Equating this ground of review with ‘rationality’ adds nothing to our understanding of that ground of review. It also means that rationality review has no distinct meaning in UK public law. The court then continued to assert that ‘what must be shown by CAAT is that the process which was adopted by the Secretary of State was one which was not reasonably open to him’ (para 57), thus equating rationality with reasonableness – and equating both with the duty to take into account all relevant consideration. A similar approach was taken by the Supreme Court in the Braganza case of 2015, by concluding that the decision that was scrutinized by the court was ‘unreasonable in the Wednesbury sense, having been formed without taking relevant matters into account’ (para 42, and see also paras 53 and 103).

With respect, arguing that it is unreasonable or irrational to not take all relevant considerations into account is conceptually confusing and in fact misguided. It is not more helpful than arguing that it is unreasonable or irrational to take irrelevant considerations into account, act in bad faith, be in a state of conflict of interests, act for an improper purpose etc. Describing distinct grounds of review by attaching the concepts ‘unreasonable’ or ‘irrational’ to them adds nothing to our understanding of these distinct grounds of review – and makes reasonableness and rationality mega-grounds of review with no distinct meaning. It is both surprising and unfortunate that conceptual mistakes that were made more than 70 years ago in Wednesbury – and 35 years ago in GCHQ – still inform current judicial decisions in UK public law. The GCHQ case, more specifically, collated almost all grounds of review that relate to the exercise of discretionary powers under the title ‘rationality’ – and continued to equate rationality with reasonableness, thus making the terms ‘rationality’ and ‘reasonableness’ redundant. But they are not. We should better describe what reasonableness review and rationality review are (as separate grounds of review) – and distinguish them from other, distinct grounds of review.

Reasonableness as a distinct ground of review can only be understood as a weighing and balancing test – one that refers to the content of the administrative decision rather than to the decision-making process. An unreasonable decision is one that results from according distorted weight to relevant considerations. Back in 1947, Lord Greene stated in the Wednesbury case that courts can scrutinize the reasonableness of an administrative decision only after establishing that the decision was intra vires; that the decision-making process was intact; that all the relevant considerations were taken into account; and that irrelevant considerations were not taken into account – or that the administrative body did not try to achieve improper purpose. Lord Greene failed to reach the inevitable conclusion: that after taking into account all relevant considerations and nothing but relevant considerations, the only thing that can go wrong with regard to the legality of the administrative decision is the weight accorded to the relevant considerations. Therefore, for reasonableness to have any distinct meaning in public law it must only refer to the weight that was accorded to the relevant considerations – and not to the relevancy of these considerations.

Rationality as a distinct ground of review can only be understood as ‘instrumental rationality’. This is perhaps the most common perception of rationality. It is often applied in the legal world and especially in public law – as part of the proportionality test. It describes rationality as deploying the appropriate means in order to achieve certain ends (whatever these ends may be). After years of applying the proportionality test in UK public law (in cases involving the ECHR or EU law) we now know what the rationality test means within the context of public law. Perceiving rationality as ground of review that focuses on the relation between means and end is the most helpful and accurate way to understand the distinctiveness of this ground of review. This perception of rationality is sufficiently specific – but not too narrow. It avoids vagueness and uncertainties. It does not apply to cases that are better described and scrutinised by other grounds of review. It is the only concept, together with ‘suitability’, that describes the necessity to have some relation between means and end – and it is already being applied in that way within the framework of proportionality review. All that we need to do is to apply this concept in the same way, clearly and consistently, also outside the context of proportionality review – and outside the context of protected rights.

The perception of rationality review as ‘instrumental rationality’ also explains why it is confusing and misleading to equate rationality with reasonableness, as only the latter is a balancing test. We should acknowledge that we have in UK public law two completely different grounds of judicial review: rationality and reasonableness. The only similarity between the two is that they allow the court to scrutinize the content of the administrative decision. But this is where the similarity ends as the nature of these ground of review, the requirements that they set for the administrative body and the levels of scrutiny they allow the court to apply are completely different.

Back to the CAAT case: the UK government did fail to take into account a relevant consideration. Labelling this failure as irrational or unreasonable is unnecessary, confusing and in fact misguided. The decision to grant licences could have been unreasonable only if the government took into account all relevant considerations but accorded them distorted weight. That was not the case in CAAT. The decision to grant licences could have been irrational only if the means (granting licences) had no causal or logical connection to the Government’s end (whatever that end might be). This question, however, was not discussed in CAAT.

The CAAT case does give rise to important normative questions about the proper scope and intensity of judicial review in UK public law, but these questions cannot be answered before we lay out a common ground with regard to the meaning of the grounds of judicial review – and especially the currently most ambiguous ones: reasonableness and rationality.

My thanks are due to Stephen Tierney and Luke Griffiths for commenting on the first draft of this post.

The case of R (Privacy International) v Investigatory Powers Tribunal is the latest in a series of high profile judicial engagements with the doctrine of parliamentary sovereignty. The case concerned the legal status of s.68(7) of the Regulation of Investigatory Powers Act 2000, and in particular, whether this provision constituted a successful attempt to oust the jurisdiction of the High Court to hear challenges to the decisions of the Investigatory Powers Tribunal by judicial review.

The Supreme Court divided this question into two parts, and the constitutional doctrine of parliamentary sovereignty was implicated in each strand in fundamental ways: first, in the specific context of interpreting Parliament’s legislative intention in enacting a provision which purported to immunise decisions of the Investigatory Powers Tribunal from further legal challenge; and second, in relation to whether it can ever be legally possible, in general, for Parliament to enact an ouster clause of this kind.

This post reflects on the judicial attitudes to parliamentary sovereignty evident in Privacy International, the force of this approach when considered in the context of other recent case law on this doctrine, and what this might suggest about the broader use of constitutional principles in the UK Supreme Court. There are reasons to doubt that the majority decision gives appropriate weight or effect to the idea of legislative sovereignty. Yet more significant than the specific outcome of Privacy International is the overarching constitutional framework in which the questions raised in this case are addressed. PrivacyInternational shows this framework is still being developed in the courts, and I will argue that this process of constitutional construction needs to be subject to critical scrutiny.

Parliamentary Sovereignty and Statutory Interpretation

The question of the proper approach to the interpretation of ouster clauses has long been a challenging one, since at least the (in)famous decision of the House of Lords in Anisminic v Foreign Compensation Commission. In that case, a majority of the Law Lords held that a provision to establish that ‘[t]he determination by the commission of any application made to them… shall not be called in question in any court of law’ was ineffective to prevent judicial review. In an exercise of linguistic creativity, the House of Lords concluded that where the Commission made an error of law while allocating compensation to corporate entities following the Suez crisis, it exceeded its jurisdiction – such an application had not therefore been determined and rendered immune from further legal challenge, but was instead a ‘purported determination’ which the courts could declare a nullity.

For those who were already unconvinced by the legal magic at the heart of Anisminic, the result of Privacy International will appear similarly challenging, for the ouster clause in s.68(7) of RIPA seemed explicitly designed to cut off this line of argument. It provided that ‘determinations, awards, orders and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court’. This represents an upgrading of the language rejected in Anisminic in a number of ways, including adding ‘awards, orders and other decisions’ to the category excluded from legal challenge, and attempting to immunise even determinations touching on the jurisdiction of the Tribunal from further review. Yet by a 4-3 majority in the Supreme Court, this statutory attempt to confront the logic underlying the decision in Anisminic was to fail.

This generates a problem from the perspective of parliamentary sovereignty. It is well established that, as Lady Hale put it when giving the unanimous judgment of the court in R (Black) v Secretary of State for Justice, ‘[t]he goal of all statutory interpretation is to discover the intention of the legislation’, and ‘[t]hat intention is to be gathered from the words used by Parliament, considered in the light of their context and their purpose’ [36]. The words used by Parliament in s.68(7) are clear, and understood in the context of the decision in Anisminic, it seems even more clear that their purpose is to oust judicial review. In confirming an alternative statutory construction – one which is the opposite of what Parliament seems to have intended – the Supreme Court appears to be challenging the legislature’s legally unlimited law-making authority.

Of course, as the considerable body of case law and commentary around Anisminic demonstrates, we are long past the point where ouster clauses can be assessed on face value. If the provision in question in Privacy International is compared with that in Anisminic, it is clearly a more elaborate attempt to exclude judicial review. Yet other comparators also exist: the ultimately abandoned draft clause 108A proposed in clause 14 of the Asylum and Immigration (Treatment of Claimants etc) Bill 2003 (as introduced in the House of Lords) ran to 60 lines, prompted a public stand-off between the judges and the New Labour government, and (many believe) led to Lord Steyn, Lord Hope and Baroness Hale overtly speculating in R (Jackson) v Attorney General about the possible existence of common law limits on parliamentary sovereignty. Judged from that vantage point, the ouster clause in Privacy International starts to look like a very half-hearted attempt to avoid established precedent, a claim developed in further detail by Adam Tucker.

As the delicately balanced 4-3 decision in Privacy International shows, there is always scope for disagreement about Parliament’s true intention when enacting legislation, and this case will provide further fuel for the debate about judicial fidelity to statutory language. The stakes are certainly lower in this context, given s.68(7) has already been repealed, showing a lack of deep rooted legislative commitment to the always controversial decision to try to exclude judicial review. It is also not clear how meaningful in practice it will be to expose the decisions of the Investigatory Powers Tribunal to additional legal scrutiny. The Tribunal is already staffed by senior judges from the same ranks as those who will hear applications for judicial review, and (by s.67(2)&(3)(c)) it is explicitly required to apply the same principles as would be applicable in judicial review. Whether this will offer any substantial additional accountability for the activities of the intelligence services scrutinised in the Tribunal, or will simply elongate the standard avenues of legal challenge, remains to be seen.

Yet the extension of the Anisminic line of case law in Privacy International also comes at a cost, in terms of the public understanding of the law. Even if it is defensible to say that Parliament should by now be aware of the need for absolute precision to demonstrate an intention to exclude judicial review, Privacy International confirms we are well past the point where clear words are not enough to achieve the desired effect. If the monstrosity of clause 108A from 2003 now constitutes the bar to successfully provide that an actor other than the ordinary courts can have the final say in a decision-making process, we have surely reached an intolerable level of artificiality in the interpretation of legislative language, and, from a rule of law perspective, the regrettable position where only an elite understanding of legal doctrine will provide the necessary context to comprehend the meaning of statute law.

To oust judicial review may always be a controversial policy choice, but there is no reason it cannot sometimes be a legitimate one depending on the socio-economic context, and the design of the decision-making process. Crucially, it is also a policy choice that must remain open to a Parliament in possession of legal sovereignty, even if subject to increasingly contrived requirements of clarity. Yet Privacy International also features a contribution to the contemporary judicial tradition of doubting that full scope of Parliament’s legislative power, as a supplement to the majority’s unwillingness to accept the ordinary meaning of Parliament’s legislative language. This reveals a central tension in the reasoning of the leading judgment, in so far as it is premised on the idea that there is simply a presumption against interpreting legislation in such a way as to permit the exclusion of judicial review, but at the same time suggests this presumption is in fact a disguised prohibition established and enforced by the courts.

Parliamentary Sovereignty and Rule of Law Limitations

The most acute challenge to parliamentary sovereignty appears in the judgment of Lord Carnwath, with whom Lady Hale and Lord Kerr agreed. These comments are minority obiter dicta, for as Lord Carnwath noted, it was not necessary to decide this second issue, and Lord Lloyd-Jones concurred with his leading judgment only as to the interpretation of s.68(7). Yet despite their doubly qualified authority, these comments will no doubt attract considerable attention because, if accepted, they would amount to a rule of law constraint on the sovereignty of the legislature. According to Lord Carnwath:

I see a strong case for holding that, consistently with the rule of law, binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal, whether for excess or abuse of jurisdiction, or error of law. In all cases, regardless of the words used, it should remain ultimately a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question; and to determine the level of scrutiny required by the rule of law. [144]

Lord Carnwath’s attempt to distinguish his elevation of the rule of law from the minority obiter dicta in Jackson is unconvincing – the relationship between Parliament and the courts cannot simply be ‘governed by accepted principles of the “rule of law”’ [119] in a constitutional system which allocates legally unlimited law-making power to the legislature. Instead, the constitutional status of the rule of law is exactly what is in question. And this is regardless of the fact that Parliament has negatively affirmed the enduring existence of the ‘constitutional principle of the rule of law’ in s.1 of the Constitutional Reform Act 2005 – this minimalist recognition certainly cannot be seen as an uncontroversial invitation for the courts to ‘determine’ the ‘content and limits’ [121] of a multi-faceted constitutional norm which has complex legal, political and (arguably) moral dimensions.

Lord Carnwath is therefore contributing to, rather than avoiding, the ‘debate’ first manufactured in Jackson, and embellished in Axa, Moohan, and Public Law Project, as to whether there are judicially defined limits on the content of an Act of Parliament. To assert that ‘it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review’ [131] is necessarily to reject parliamentary sovereignty, which functions to establish exactly the opposite state of affairs.

It would be easy to read too much into these claims, which add to the volume of judicial uncertainty about parliamentary sovereignty, but take us no further in principle than previous speculation about the possibility of common law review of primary legislation in exceptional circumstances. From one perspective, such repetition of the idea that the rule of law has the potential to trump parliamentary sovereignty might be seen to add weight to such judicial claims. However, by regularising these assertions, but only as an abstract possibility, seemingly never to be acted upon, the opposite effect is arguably being achieved – the emptiness of the rhetoric becomes ever more evident, as familiarity diminishes their force.

Perhaps more significant than whether the courts possess the power hypothesised by some judges, which runs contrary to the fundamental principle of the UK’s constitutional order, is the broader inconsistency in approach this reveals. In Privacy International parliamentary sovereignty is (for a minority) a principle potentially in dispute, if it were ever to collide unavoidably with the rule of law. Yet in other recent cases, the courts have seemed far less troubled. In Miller, parliamentary sovereignty was an essential constitutional principle for the majority when it could be used to constrain the activities of the executive. And in the Legal Continuity (Scotland) Bill Reference, parliamentary sovereignty was absolutely crucial when settling a clash with the devolved administration in Scotland in favour of the UK’s central institutions (and this was for an almost identically constituted Supreme Court to that which decided Privacy International, with the only change in the former case being Lord Hodge sitting in place of Lord Wilson).

The legacy of Privacy International is not, therefore, that it heralds the limitation of Parliament through the rule of law, and the abandonment of parliamentary sovereignty which would inevitably result. On the contrary, such speculation about this doctrine is not determinative of the scope of parliamentary legislative authority, for if Parliament truly is sovereign, this is not a matter the courts can decide. Yet the case is revealing in so far as it provides a clear insight into the constitutional framework within which many judges increasingly see ideas of legislative authority operating.

Privacy International and the Synthetic Constitution

The critical problem with the body of doubts about parliamentary sovereignty to which Privacy International now adds is that it presents only a partial view of the UK constitution. This is a constitution in which legal principles are developed in isolation from the political dimensions of public power, attributed authority over and above political (and especially democratic) principles, and absent the input of the political institutions. The artificiality of this approach is most apparent in attempts to establish the courts as the potentially ultimate constitutional authority in some contexts, but to cling closely to parliamentary sovereignty in others. The effect is that a synthetic vision of the constitution is increasingly evident and prevailing in the UK’s highest courts – it is a framework which is superficially plausible, perhaps in some ways even attractive, but equally one which we are not compelled to accept as absolute or authentic.

Lord Carnwath’s leading judgment in Privacy International is a further contribution to this trend, not just in the way it perceives the limitation of parliamentary sovereignty, but in framing this as part of a ‘more flexible approach to the relationship between the legislature and the courts’ which is ‘wholly consistent with the modern constitutional settlement’ [131] . The status of parliamentary sovereignty is an emblematic issue given its function is to establish the constitutional primacy of political decision-making in the pre-eminent democratic institution of UK central government. Yet conceptualising the limitation of parliamentary sovereignty is just one part of a broader attempt to reconstruct the UK’s constitutional framework. Other core elements of this scheme are the judicial supposition of a scheme of ‘constitutional statutes’ with enhanced legal status, from Thoburn onwards, and the elaboration of a distinct category of ‘constitutional principles’ in cases such as HS2, again with additional legal weight attaching to that designation. And prime among these principles is the rule of law, which after the decision in Evans, coupled with that in Privacy International, appears ever more focused on vindicating the significance and finality of judicial oversight of decision-making, regardless of the intentions of the UK’s legislative body in establishing alternative arrangements.

The manner in which this synthetic constitution is being constructed through judicial action, and presented as a ‘modern constitutional settlement’, obscures the fact that there should be a choice: we are not compelled to accept the structures being developed by the courts, which are far from immutable or inevitable. It is important that we recognise the contestability of this evolving framework, retain the scope to scrutinise the core components and characteristics of this scheme as they are webbed together, and the capacity to challenge the right of the courts to author it.

It is not therefore sufficient to question the interpretation of legislation, or the extent to which parliamentary sovereignty is now limited through the rule of law. Instead, we can also challenge the authenticity of the constitutional framework in which these issues are being judicially confronted, rather than feel obliged to accept this vision on its own terms. For at the very least, Privacy International provides further confirmation that this framework is quickly coming to dominate, and arguably also distort, our understanding of key constitutional norms, values and relationships.

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